from the the-secret-interpretation-of-why-the-4th-amendment-is-dead dept

The FISA Court (FISC) today released a heavily redacted version of its July ruling approving the renewal of the bulk metadata collection on all phone calls from US phone providers under Section 215 of the Patriot Act. This is part of the "secret interpretation" as to how the FISC interprets the Patriot Act's "business records" or "tangible things" section to mean that the government can order a telco to turn over pretty much all records -- even as the very author of the law says it was written specifically to not allow this interpretation.

Much of the ruling is pretty much what you'd expect, given the way defenders of this program have been insisting that this is all very legal. It argues that Smith v. Maryland show that there are no privacy protections in data given to your telco. It goes on at length defending the third party doctrine, arguing that because some third party holds your data, you have no expectation of privacy. As many have argued, this is a ridiculous and antiquated view of the third party doctrine, not at all consistent with modern technology, but the FISC repeats it without question. While some have pointed out that even if single points of metadata might not be privacy violating, collecting all of them creates a new problem, the court rejects that entirely.

From there, there's a big discussion of whether or not "there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation." This is a big part of where the concern lies. How can the government defend the claim that all records are "relevant to an authorized investigation." Here, the court compares the order to the Stored Communications Act (SCA), which lets the government get access to records as well. And then the word games begin. Basically, it argues that because one law requires "specific and articulable facts" and that the information must be "material," while the other (the PATRIOT Act) does not, then the government doesn't need specific and articulable facts. Rather it just needs "a statement of facts showing there are reasonable grounds to believe that the records are relevant to the investigation."

For non-content records production requests, such as the type sought here, Section 2703(c) provides a variety of mechanisms, including acquisition through a court order under Section 2703(d). Under this section, which is comparable to Section 215, the government must offer to the court "specific and articulable facts showing that there are reasonable grounds to believe that the records or other information sought, are relevant and material to an ongoing criminal investigation." 2703(d) (emphasis added). Section 215, the comparable provision for foreign intelligence purposes, requires neither "specific and articulable facts" nor does it require that the information be "material." Rather, it merely requires a statement of facts showing that there are reasonable grounds to believe that the records sought are relevant to the investigation. 50 U.S.C. That these two provisions apply to the production of the same type of records from the same type of providers is an indication that Congress intended this Court to apply a different, and in specific respects lower, standard to the government's Application under Section 215 than a court reviewing a request under Section 2703(d). Indeed, the Act version of FISA's business records provision required "specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power." 50 U.S.C. §1862(b)(2)(B) as it read on October 25, 2001. In enacting Section 215, Congress removed the requirements for "specific and articulable facts" and that the records pertain to "a foreign power or an agent of a foreign power." Accordingly, now the government need not provide specific and articulable facts, demonstrate any connection to a particular suspect, nor show materiality when requesting business records under Section 215. To find otherwise would be to impose a higher burden -- one that Congress knew how to include in Section 215, but chose to dispense with.

Also, it argues that since Section 215 allows recipients of the order to challenge them and no telco ever has that this lends it to believe there are no problems with the law.

Second, Section 2703(d) permits the service provider to file a motion with a court to "quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause undue burden on such provider." Congress recognized that, even with the higher statutory standard for a production order under Section 2703(d), some requests authorized by a court would be "voluminous" and provided a means by which the provider could seek relief using a motion. Under Section 215, however, Congress provided a specific and complex statutory scheme for judicial review of an Order from this Court to ensure that providers could challenge both the legality of the required production and the nondisclosure provisions of that Order. 50 U.S.C. §1861(f). This adversarial process includes the selection of a judge from a pool of FISC judges to review the challenge to determine if it is frivolous and to rule on the merits, provides standards that the judge is to apply during such review, and provides for appeal to the Foreign Intelligence Surveillance Court of Review and, ultimately, the U.S. Supreme Court. This procedure, as opposed to the motion process available under Section 2703(d) to challenge a production as unduly voluminous or burdensome, contemplates a substantial and engaging adversarial process to test the legality of this Court' Orders under Section 215. This enhanced process appears designed to ensure that there are additional safeguards in light of the lower threshold that the government is required to meet for production under Section 215 as opposed to Section 2703(d). To date, no holder of records who has received an Order to produce bulk telephony metadata has challenged the legality of such an Order. Indeed, no recipient of any Section 215 Order has challenged the legality of such an Order, despite the explicit statutory mechanism for doing so.

Basically, the court says "why of course there's an adversarial process" to protect users' privacy. It just depends on Verizon or AT&T taking up the fight on behalf of their users, and they haven't done so, so let's just assume everyone's okay with this. That's kind of crazy when you think about it. Admittedly, the public should be up in arms that Verizon and AT&T appear to have no interest in challenging these broad collections of data, but that hardly makes them constitutional.

From there we move onto the interpretation of how this massive data collection could possibly be seen as "relevant." First, it notes (as mentioned above) that the government doesn't need to prove that the data is actually relevant. Just that it has reasonable grounds to believe that they are relevant.

As an initial matter and as a point of clarification, the government's burden under Section 215 is not to prove that the records sought are, in fact, relevant to an authorized investigation. The explicit terms of the statute require "a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant.

Then it basically says that because the NSA can sniff out terrorists within a giant database, that makes the entire database relevant. Really.

This Court has previously examined the issue of relevance for bulk collections. See; [REDACTED] While those matters involved different collections from the one at issue here, the relevance standard was similar.... ("[R]elevant to an ongoing investigation to protect against international terrorism...."). In both cases, there were facts demonstrating that information concerning known and unknown affiliates of international terrorist organizations was contained within the non-content metadata the government sought to obtain. As this Court noted in 2010, the "finding of relevance most crucially depended on the conclusion that bulk collection is necessary for NSA to employ tools that are likely to generate useful investigative leads to help identify and track terrorist operatives." [REDACTED] Indeed, in [REDACTED] this Court noted that bulk collections such as these are "necessary to identify the much smaller number of [international terrorist] communications.' [REDACTED] As a result, it is this showing of necessity that led the Court to find that "the entire mass of collected metadata is relevant to investigating [international terrorist groups] and affiliated persons." [REDACTED]

It then applies those previous, redacted-named rulings, to this case, repeating the DOJ's own filing saying "all of the metadata collected is thus relevant, because the success of this investigative tool depends on bulk collections."

That's ridiculous and tautological. You could argue that the "success" of a program designed to stop crimes "depends on" putting cameras inside everyone's home, but that doesn't make it any less a violation of privacy. It also hardly makes the collection of all such data "relevant."

The FISC continues to tap dance on the grave of the 4th Amendment:

The government depends on this bulk collection because if production of the information were to wait until the specific identifier connected to an international terrorist group were determined, most of the historical connections (the entire purpose of this authorization) would be lost. The analysis of past connections is only possible "if the Government has collected and archived a broad set of metadata that contains within it the subset of communications that can later be identified as terrorist-related." Because the subset of terrorist communications is ultimately contained within the whole of the metadata produced, but can only be found after the production is aggregated and then queried using identifiers determined to be associated with identified international terrorist organizations, the whole production is relevant to the ongoing investigation out of necessity.

Once again, that makes no sense. First off, just because you can put together all this aggregate data and use it to find criminals and terrorists doesn't automatically make it legal. Once again, I'm sure that having cameras in everyone's homes would allow similar capturing of illegal behavior. But that doesn't make it legal. Second, the argument that without this metadata collection the information would be "lost" is clearly untrue. As was just revealed a few weeks ago, AT&T has employees embedded with the DEA who are willing, ready and able to do deep dive searches on decades worth of phone records (even beyond AT&T). The data isn't lost. They're available via AT&T employees who are working right alongside government employees.

Incredibly, the FISC then claims that the mere claim that terrorists use the phone system is enough to show that all phone records are relevant.

The government must demonstrate "facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation." The fact that international terrorist operatives are using telephone communications, and that it is necessary to obtain the bulk collection of a telephone company's metadata to determine those connections between known and unknown international terrorist operatives as part of authorized investigations, is sufficient to meet the low statutory hurdle set out in Section 215 to obtain a production of records.

Except, almost nothing there makes sense. It's not true that it is necessary to obtain bulk collection of the metadata to find those connections. And just because terrorists live in houses, we don't say that it's okay for law enforcement to search every house. Take this same argument and apply it to anything else and the 4th Amendment goes away entirely.

In short, this shows the serious problems with these efforts being non-adversarial. The FISC more or less buys the government's argument at every single turn, even though there are multiple arguments for why the government's position is either not true or, at the very least, misleading.

Re: 3rd Party Doctrine...

Why the Government can collect all telepathic thoughts.

Brain waves are a form of electro magnetic energy. In order for someone to read your thoughts they would have to be broadcast outside of your skull. Outside of your skull is public. Therefore you are placing your thoughts into a public area and can have no expectation of privacy.

Re: Re: Why the Government can collect all telepathic thoughts.

The only explanation

The article only scratches the surface of the egregiousness of that ruling.

The ruling is actually worse than I expected it to be. And that's saying something. No wonder they wanted it to be kept secret.

I'm struggling to figure out how they say such things while at the same time thinking that they're upholding anything remotely like the Constitution or justice. I can only come up with two reasons: mass insanity, or they simply hold the US in such deep contempt that they are actively doing everything they can to destroy it. And I don't think mass insanity is a plausible explanation.

I know this sounds hyperbolic, but honestly, I simply cannot think of any other way to explain this.

Another reason to worry

If the non-redacted bits are this bad, how much worse are the redacted parts? They fought tooth and nail to keep this document from ever seeing the light of day, you can be sure they only released the bare minimum that they thought they could get away with, so I'm sure the original document is much, much worse.

See? It's all nice and legal. Just get used to it.

This yet again supports conjecture that the Snowden "leak" is just part of intended limited hangout to acquaint everyone with current facts. No one can show otherwise. Not been the least reduction of spying, has there? Congress investigating? Budget cut? People tossed into jail? -- NOPE. All that's changed is that most dolts now know of it.Spying is the main 'business model' of the internet, especially for Google and Facebook.

Re: See? It's all nice and legal. Just get used to it.

ACLU Heyday

The good news about this order FINALLY being published, is it will give the ACLU massive ammunition in its current lawsuit, require a fairly expedited appeal process from the preliminary injunction proceedings, and incense enough enough members of the Supreme Court that they'll almost definitely grant cert, and (we can pray)overrule Smith v. Maryland.

and at the end of the day they are STILL sweeping up all the data and as we have not seen all the snowden docs its most likely far worse than we even think.

It looks like the tech people will have to actually do something about this. Tech people are going to have to rigorously test and come up with a new encryption standard a new way of generating random numbers and a safer method of key exchange. The US can have its spying but don't expect any who is not full retard to store data inside your boarders.

That's always been the core of the wiretap argument

The wiretap laws and court decisions, from the beginning, have been based on the concept that the government can subpoena third-party data from corporations. The main difference here is that they're using the Patriot Act to reduce the amount of justification for doing so.

It's not something that can be fixed unless Congress is willing to fix the root of the problem and not just the excesses the NSA's been getting caught at, and that's unlikely to happen.

The it's public rule

Ok fine, so lets say its all public. Now what about anything that requires a username and password? That's private, not public. What about anything that is encrypted? That's private, not public. What about anything on a home or business computer? That's private, not public. Maybe I'm missing something really really big here, but that is all private and not public. So how is FISC legal again? Oh thats right, it's not.

Re: The it's public rule

Bioforge writes:

"Now what about anything that requires a username and password? ... What about anything that is encrypted? ...
What about anything on a home or business computer? ...
Maybe I'm missing something really really big here..."

By their definitions, you are missing something. With
the exception of you home computer, all your "private"
information is "technically" held by a third party.

Passwords - Crack them. Third party holds the account.
Encryption - Break it (yes I know not now, but in 5 years??)
Third party holds the data.
Work computer - Not yours, third party.

I'm just surprised they haven't decided my lawyer is a third party....

Bush was a symptom

Is there any other cause for a secret interpretation (which is, essentially, a secret law) but to legitimize action that would outrage the public?

I really cannot imagine any.

Secret interpretation of the law is the same ingredient that brought us extraordinary rendition and enhanced interrogation not to mention drone massacres and "The Geneva Convention is outdated".

== == ==As of this posting I have not received a US National Security Letter or any classified gag order from an agent of the United States
Encrypted with Morbius-Cochrane Perfect Steganographic Codec 1.2.001
Tuesday, September 17, 2013 9:22:42 PM
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Tough choice

"Admittedly, the public should be up in arms that Verizon and AT&T appear to have no interest in challenging these broad collections of data"

I imagine when this was first offered to the telco's it went something like this.
Gov: We want your cooperation spying on the world.
Tel: World?
Gov: Everybody.
Tel: Isn't that unconstitutional?
Gov: Someone needs standing to make a claim. We promise not to charge you.
Tel: Oh.
Gov: Well you could be heroic and defend Americans rights. You'll be up against secret laws in secret courts. The smallest point you win will of course remain secret. The hundreds of millions of cost well your shareholders will understand. Or you can let us do what we going to do anyway and we'll lavish billions on you.
Tel: No heroes here. Throw in immunity and you have a deal.

Re:

the government wants to carry on doing the surveillance, just as it has been doing, unknown to the people, for years, it will bend, twist and disect any and all present laws so they can do so. in the unlikely event that they are forbidden to do so, they will introduce new laws that remove the rights of the people and enhance the rights of the government to remove the rights of the people, in all ways they want for as long as they want. human rights and freedom in all ways are being removed from democratic countries almost on a daily basis. the leader of this removal is the USA and it should be damn ashamed of itself!!